The defendant was arrested at the Kuala Lumpur International Airport and charged with trafficking under s. 12 of the Anti-Trafficking in Persons Act 2007. Immigration officers also rescued 26 citizens of the People’s Republic of China that were presumed victims of trafficking.
An application was filed by the officers for an interim protection order (“IPO”) to place the victims in a place of refuge for 14 days for the purpose of conducting an investigation. At the completion of this period, the investigating officer requested an extension of the IPO for an additional 14 days. The investigating officer also submitted a report stating that all 26 of the persons were victims of trafficking on the basis that (i) all of their original PRC passports were changed to forged Hong Kong passports and (ii) while in Malaysia they were confined to their place of accommodation. The Magistrates court agreed with the report, but nonetheless ordered the release of the victims.
The prosecution appealed to the High Court to revise the Magistrate’s order, in which they submitted that the Magistrate had erred in fact and in law when the Magistrate made the order (“Order”) to release the 26 respondents under section 51(3)(b)(ii)[1] of the Anti-Trafficking in Persons Act 2007 (“the Act”), who are placed under the interim protection order (“IPO”) for 14 days, for being suspected as victims of human trafficking.
The investigating officer of the immigration department (“the IO”) applied to extend the IPO for another 3 months for the purpose of recording the statement or deposition of the 26 respondents. In support of the IO’s application, he submitted his investigation report which concluded that the respondents were trafficked persons. On the other hand, the protection officer tendered his side’s report but was only in relation to the 9 female respondents which concluded that they were not trafficked persons and no report was tendered on the remaining 17 male respondents.
ChinaMalaysiaThe High Court held that:
(1) It was erroneous for the magistrate to decide on the one hand that he agreed with the IO’s conclusions and then on the other hand act in a contrary manner under s 51(3)(b)(ii) of the Act and conclude that the 26 respondents were not trafficked persons and to order their release. Due to this error of the magistrate, the 26 respondents who were trafficked persons were purportedly released and this in turn hampered the work of the IO in recording their evidence under s 52 of the Act.
(2) Before making the order to allow an extension of time for the placement of the 26 respondents, the magistrate should have read the reports of the IO and the protection officer, as required under s 51(3) of the Act, to determine whether 26 respondents were trafficked persons. In the present case, the protection officer only made a report on nine out of the 26 respondents but there was nothing in the records to show that the magistrate considered that report. According to the records the magistrate made the order after considering only the report of the IO. That also a legal error on the part of the magistrate. In any event it was the IO’s report that was more relevant in the instant case as it was not about the background and personal information regarding the person but instead about whether such a person was a trafficked person.
(3) Based on the report by the IO it was clear that the 26 respondents were trafficked persons and the order by the magistrate should be made under s 51(3)(a)(ii) and not s 51(3)(b)(ii) of the Act. The magistrate had erred in fact and in law and his decision to release the 26 respondents under s 51(3)(b)(ii) of the Act was incorrect and improper under s 323 of the CPC. The 26 respondents were to be placed in a place of refuge for a period not exceeding three months from the date of expiry of the first IPO for the recording of their deposition.
Section 12 of the Anti-Trafficking in Persons Act of 2007
High Court (Shah Alam)
[2010] 7 MLJ 306
